2002-3344 ORD
ORDINANCE NO. 2002-3344
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF
THE CITY OF MIAMI BEACH, FLORIDA, ESTABLISHING
PROCEDURES FOR RESOLVING BIDS (BIDS), REQUEST FOR
PROPOSALS (RFP'S), REQUEST FOR QUALIFICATIONS (RFQ'S),
REQUEST FOR LETTERS OF INTEREST (RFLI'S), AND
PURCHASE ORDERS BASED ON WRITTEN OR ORAL
QUOTATIONS, BY AMENDING CHAPTER 2 OF THE CODE OF
THE CITY OF MIAMI BEACH ENTITLED "ADMINISTRATION";
BY AMENDING ARTICLE VI THEREOF ENTITLED
"PROCUREMENT"; BY CREATING SECTION 2-371 ENTITLED
"AUTHORITY TO RESOLVE PROTESTED BIDS AND PROPOSED
AWARDS"; PROVIDING FOR SEVERABILITY; PROVIDING FOR
CODIFICATION; AND PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, from time to time the City procures goods and services through
Invitation for Bids, Requests for Proposals, Requests for Qualifications, Requests for
Letters of Interest, and purchase orders based on written or oral quotations, in accordance
with the public bidding procedures set forth in Florida law and the Code of the City of
Miami Beach (the "City Code"); and
WHEREAS, such process may lead to protested bids and proposed awards; and
WHEREAS, it is the intent of the Mayor and City Commission that procedural and
technical issues related to Invitations for Bids, Requests for Proposals, Requests for
Qualifications, Requests for Letters of Interest, and purchase orders based on written or
oral quotations, be decided by the City Manager and the City Attorney, and that their
determinations with respect to said procedural and technical issues shall be deemed final;
and
WHEREAS, it is in the best interests of the City and all respondents to Invitations
for Bids, Requests for Proposals, Requests for Qualifications, Requests for Letters of
Interest, and purchase orders based on written or oral quotations, to have a clear and
unequivocal procedure for resolving such protests in a timely and expeditious manner.
NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, as follows:
Section 1. There is hereby added to Article VI of Chapter 2 of the City Code a new
Section 2-371, which shall read as follows:
Section 2-371. Authority to Resolve Protested Bids and Proposed Awards.
(a) Right to Protest. Any actual bidder, qualified proposer, or interested
parties (hereinafter collectively referred to as the "bidder") who has a
substantial interest in, and is aggrieved in connection with the solicitation or
proposed award of, a request for proposals ("RFP"), request for
I
qualifications C'RFQ"), request for letters of interest eRFLI") or invitation
for bid for goods and/or services ("hereinafter, collectively referred to as
the bid") may protest to the City Manager or his or her designee. Protests
arising from the decisions and votes of any evaluation or selection
committee shall be limited to protests based upon alleged deviation(s) from
established purchasing procedures set forth in this Code, any written
guidelines of the Procurement Department, and the specifications,
requirements and/or terms set forth in any bid.
(1) Any protest concerning the bid specifications... requirements, and/or
terms must be made within three (3) business days (for the purposes
of this ordinance, "business day" means a day other than Saturday,
Sunday or a national holiday) from the time the facts become known
and, in any case, at least two (2) business days prior to the opening of
the bid. Such protest must be made in writing to the City Manager
or his or her designee, and such protest shall state the particular
grounds on which it is based and shall include all pertinent
documents and evidence. No bid protest shall be accepted unless it
complies with the requirements of this section. Failure to timely
protest bid specifications, requirements and/or terms is a waiver of
the ability to protest the specifications, requirements and/or terms.
(2) Any protest after the bid opening, including challenges to actions of
any evaluation or selection committee as provided in subsection (a)
above, shall be submitted in writing to the City Manager, or his or her
designee. The City will allow such bid protest to be submitted
anytime until two (2) business days following the release ofthe City
Manager's written recommendation to the City Commission, as same
is set forth and released in the City Commission agenda packet, for
award of the bid in question. Such protest shall state the particular
grounds on which it is based and shall include all pertinent grounds
on which it is based, and shall include all pertinent documents and
evidence. No bid protest shall be accepted unless it complies with the
requirements of this section. All actual bidders shall be notified in
writing (which may be transmitted by electronic communication, such
as facsimile transmission and/or e-mail), following the release of the
City Manager's written recommendation to the City Commission.
(b) Any bidder who is aggrieved in connection with the solicitation or proposed
award of a purchase order based on an oral or written quotation may protest
to the City Manager or his or her designee anytime during the procurement
process, up to the time of the award of the purchase order, but not after
such time. Such protest shall be made in writing and state the particular
grounds on which it is based and shall include all pertinent documents and
evidence. No bid protest shall be accept~d unless it complies with the
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requirements of this section.
(c) The City may request reasonable reimbursement for expenses incurred in
processing any protest hereunder, which expenses shall include, but not be
limited to, staff time, legal fees and expenses (including expert witness fees),
reproduction of documents and other out-of-pocket expenses.
(d) Authority to Resolve Protests. The City Manager or his or her designee
shall have the authority to settle and resolve a protest concerning the
solicitation or award of a bid.
(e) Responsiveness. Prior to any decision being rendered under this Ordinance
with respect to a bid protest, the City Manager and the City Attorney, or their
respective designees, shall certify whether the submission of the bidder to the
bid in question is responsive. The parties to the protest shall be bound by the
determination of the City Manager and the City Attorney with regard to the
issue of responsiveness. The determination of the City Manager and the City
AttOffi@Y with regard to all procedural and technical matters shall be final.
(f) Decision and Appeal Procedures. If the bid protest is not resolved by
mutual agreement, the City Manager and the City Attorney, or their
respective designees, shall promptly issue a decision in writing. The decision
shall specifically state the reasons for the action taken and inform the
protestor of his or her right to challenge the decision. Any person aggrieved
by any action or decision of the City Manager, the City Attorney, or their
respective designees, with regard to any decision rendered under this
section may appeal said decision by filing an original action in the Circuit
Court of the Eleventh Judicial Circuit in and for Miami-Dade County,
Florida, in accordance with the applicable court rules. Any action not
brought in good faith shall be subject to sanctions including damages suffered
by the City and attorney's fees incurred by the City in defense of such
wrongful action.
(g) Distribution. A copy of each decision by the City Manager and the City
Attorney shall be mailed or otherwise furnished immediately to the protestor.
(h) Stay of Procurements During Protests. In the event of a timely protest
under this section, the City shall not proceed further with the solicitation or
with the award pursuant to such bid unless a written-determination is made by
the City Manager, that the award pursuant to such bid must be made without
delay in order to protect a substantial interest of the City.
(i) The institution and filing of a protest under this Code is an administrative
remedy that shall be employed prior to the institution and filing of any civil
action against the City concerning the subject matter of the protest.
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G) Protests not timely made under this section shall be barred. Any basis or
ground for a protest not set forth in the letter of protest required under this
section shall be deemed waived.
(k) At the time the City Manager's written recommendation for award of a bid is
presented at a meeting of the Mayor and City Commission, the City Attorney,
or his or her designee, shall present a report to inform the Mayor and City
Commission of any legal issues relative to any bid protest filed in connection
with the bid in question.
ill The determination of the City Manager and the City Attorney with regard to
all procedural and technical matters shall be final.
Section 2. All ordinances, resolutions or parts thereof in conflict herewith be and the same
are hereby repealed.
Section 3. If any section, sentence, clause or phrase of this Ordinance is held to be invalid
or unconstitutional by any court of competent jurisdiction, then said holding shall in no way affect
the validity of the remaining portions of this Ordinance. It is the intention of the Mayor and City
Commission of the City of Miami Beach, and it is hereby ordained that the provisions of this
Ordinance shall become and be made part of the Code of the City of Miami Beach, Florida. The
sections of this Ordinance may be renumbered or relettered to accomplish such intention, and the
word "ordinance" may be changed to "section," "article," or other appropriate word.
Section 4. This Ordinance shall take effect ten (10) days after its adoption on the 19th day
of January, 2002.
PASSED on First Reading this 19th day of December, 2001.
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CITY OF MIAMI BEACH
COMMISSION ITEM SUMMARY
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Condensed Title:
Establishing Bid protest procedures related to the award of Bids, RFPs and RFQs..
Issue:
VVhether all procedural and technical issues related to the award of Bids, RFPs, and RFQs should be
decided by the City Manager and the City Attorney upon written receipt of a timely filed protest, and should
the City Manager's and City Attorney's determinations with respect to any procedural and technical issues
be deemed final.
Item Summary/Recommendation:
It is the intent of the attached Ordinance that all procedural and technical issues related to Bids, RFPs,
RFQs, RFLls, and Contract Awards be decided by the City Manager and the City Attorney upon written
receipt of a protest, and that their determinations with respect to any procedural and technical issues be
deemed final. At the time the City Manager's recommendation is presented at a meeting of the Mayor and
City Commission, the City Attomey, or his or her designee, shall present a report to inform the Mayor and
City Commission of any legal issues relative to any bid protest or contract award in connection with an
RFP, RFQ, RFLI, or Bid. This will ensure that the Mayor and City Commission are fully briefed and advised
of the legal issues prior to its decision.
Advisory Board Recommendation:
IN/A
Financial Information:
Amount to be expended:
D
Finance Dept.
Source of
Funds:
GENDA\2002\JAN0902\REGULAR\Summary .BidProtest.doc
AGENDA ITEM ~ ~ ~
DATE I-Il'@..
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CITY OF MIAMI BEACH
CITY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH, FLORIDA 33139
www.ci.miami-beach.f1.us
Mayor David Dermer and Date: January 9, 2002
Members of the City Commission
Jorge M. Gonzalez \. A~
City Manager a ,",v a SECOND READING - PUBLIC HEARING
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA, ESTABLISHING PROCEDURES FOR
RESOLVING PROTESTED INVITATION FOR BIDS (BIDS), REQUEST
FOR PROPOSALS (RFPS), REQUEST FOR QUALIFICATIONS (RFQS),
REQUEST FOR LETTERS OF INTEREST (RFLlS), AND PURCHASE
ORDERS BASED ON WRITTEN OR ORAL QUOTATIONS, BY AMENDING
CHAPTER 2 OF THE CODE OF THE CITY OF MIAMI BEACH ENTITLED
"ADMINISTRATION", BY AMENDING ARTICLE VI THEREOF ENTITLED
"PROCUREMENT", BY CREA TING SECTION 2-371 ENTITLED
"AUTHORITY TO RESOLVE PROTESTED BIDS AND PROPOSED
AWARDS"; PROVIDING FOR SEVERABILITY; PROVIDING FOR
CODIFICATION; AND PROVIDING FOR AN EFFECTIVE DATE.
ADMINISTRATION RECOMMENDATION
To:
From:
Subject:
COMMISSION MEMORANDUM
Adopt the Ordinance on Second and Final Reading.
ANAL YS~
The Mayor and City Commission at its October 17, 2001 meeting discussed the proposed
bid protest ordinance that was requested by Commissioner Jose Smith.
On December 19, 2001, the Mayor and City Commission unanimously approved on first
reading, the attached Ordinance with some minor changes requested by Commissioner
Smith.
The attached Ordinance has been reviewed and discussed in detail by the Administration
and the City Attorney's Office, enforces strict time frames, and articulates clear procedures,
grounds and requirements governing protest filing and administration.
The current practice includes protest procedures that are incorporated in all RFPs, RFQs,
RFLls. and Bids, which informs all bidders that if they are not selected they may protest
any recommendations for proposal/bid award by sending a formal protest letter to the
Procurement Director, which letter must be received no later than five (5) calendar days
after selection of the successful proposer/bidder by the Mayor and City Commission.
. .
Commission Memorandum
Bid Protest Ordinance
January 9, 2002
Page 2 0'2
At times individuals who have a substantial interest in and are aggrieved with an evaluation
committee's recommendation or with the City Manager's recommendation, will either
debate/present their protests before a meeting of the Mayor and City Commission. This
process does not provide for the Mayor and City Commissioners to receive a presentation
from the City Attorney's Office on the legal issues. This Ordinance will require a legal
presentation.
It is understood that the formal solicitation process at times may lead to protest from
individuals or bidders whom may be adversely affected by the recommendation of the City
Manager and/or an evaluation committee. Therefore, it is in the best interest of the City
and all bidders to have a clear and unequivocal procedure for resolving such protests in
a timely and expeditious manner.
All actual bidders will be notified in writing following the release of the City Manager's
written recommendation to the City Commission. Any actual bidder, qualified proposer, or
interested party who has a substantial interest in, and is aggrieved in connection with
proposed award, to file a written protest to the City Manager up to two (2) business days
following the release of the City Manager's written recommendation to the City
Commission. All protests will be required to state the particular grounds on which said
protests are based, and shall include all pertinent documents and evidence.
It is the intent of the attached Ordinance that all procedural and technical issues related
to Bids, RFPs, RFQs, RFLls, and Contract Awards be decided by the City Manager and
the City Attorney upon written receipt of a protest, and that their determinations with
respect to any procedural and technical issues be deemed final. At the time the City
Manager's recommendation is presented at a meeting of the Mayor and City Commission,
the City Attorney, or his or her designee, shall present a report to inform the Mayor and
City Commission of any legal issues relative to any bid protest or contract award in
connection with an RFP, RFQ, RFLI, or Bid. This will ensure that the Mayor and City
Commission are fully briefed and advised of the legal issues prior to its decision.
In order to adequately address a timely filed protest, there may be times when projects
may be delayed and/or agenda items may have to be withdrawn from the agenda of the
Mayor and City Commission. The City Manager however will exercise due diligence and
reserve the right to proceed with his recommendation when the contract award must be
made without delay in order to protect a substantial interest of the City.
JMG:fJIe:Gt
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